[Redacted], Wendy Y., 1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001971 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wendy Y.,1 Complainant, v. David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency. Appeal No. 2022001971 Hearing No. 560-2020-00159X Agency No. 1914STL DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 1, 2022 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Management Analyst, GS-0343-11 at the Agency’s National Personnel Records Center in St. Louis, Missouri. On March 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (60) and in reprisal for prior protected EEO activity when: 1. Complainant was not allowed to take classes pertaining to her job (e.g., Freedom of Information Act (FOIA), Standard Operating Procedure (SOP)); 2. Complainant was given more detailed critical elements than other team members; 3. Complainant was isolated from team members; 4. Complainant was excluded from work-related meetings and decisions by management; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022001971 2 5. Complainant did not receive good guidance or help to do her work; 6. Complainant was allegedly assigned to an inexperienced supervisor; 7. Complainant’s work was scrutinized and criticized more than others; 8. Management penalized Complainant by withholding her completed work; 9. Complainant experienced a lack of responses to work-related questions; 10. Management allegedly colluded with co-workers and taunted Complainant; 11. Complainant’s co-workers consistently asked her about her retirement; and 12. Complainant retired in fear of potential job loss. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding claim (1), Complainant claimed that she was sent a cancellation notice for a FOIA class she registered to attend. The notice indicated that the class was full. The AJ found that the record was replete with evidence of training classes Complainant was able to attend, including a FOIA class that Complainant attended in March 2018. Further, the AJ determined that when she was denied training it was because the training did not exist, it was not related to her job duties, or the class was full. Moreover, Complainant tried to circumvent and second guess her need for training that the Agency offered her, rather than simply attending it. With respect to claim (2), Complainant’s performance plan for Fiscal Year (FY) 2019 was issued on November 16, 2018, and contained four critical elements which had been discussed with her by her supervisor (S1). Management officials confirmed that Complainant’s duties did not change; rather, her performance plan included more detailed critical elements to ensure she understood the Agency’s expectations. This occurred because in previous years, Complainant displayed a lack of understanding on how to meet performance expectations. As to claim (3), Complainant claimed that she had asked for years to have her cubicle moved. Agency officials confirmed that Complainant has been in the same workspace since 2011, that her workspace is as centrally located as possible, and she is in close proximity to other team members who are all accessible in person, email, chat application, and telephone. With respect to claim (4), the AJ noted that Complainant provided nothing more than vague references to meetings of which she believed she was excluded. Regarding claim (5), Agency officials provided numerous examples of occasions in which they met with Complainant, provided feedback, or otherwise attempted to assist Complainant with improving her performance. As to claim (6), Complainant’s second-level supervisor (S2) selected S1 as the chief of a new team which was formed by the merger of Employee Development and Business Process teams because the teams share a significant amount of knowledge and benefitted from closer integration. Complainant was 2022001971 3 previously a member of the Business Process Team and was thus realigned under S1 as a member of the newly formed team. Complainant’s co-workers on the Employee Development and Business Process teams reported to S1. S2 noted that S1 had 15 years of experience, most of which was as a supervisor prior to his promotion in 2018. Regarding claims (7) and (8), the AJ noted Complainant raised several of these allegations in prior complaints. Complainant’s other contentions in these claims relate to the work performance of other employees, and not her own. With respect to claims (9) - (11), the AJ determined that Complainant failed to reference any discrete work-related questions that were ignored and mentioned her 2017 rating, and questions she had in the FY17 and FY18 rating periods. Further, Complainant alleged that coworkers asked her about her job duties and her retirement generally, or they had questions related to her work where she was allegedly a subject matter expert. The AJ found that there was no evidence of discriminatory or retaliatory animus with regard to these claims. Finally, as to claim (12), Complainant claimed that she retired in fear of potential job loss. Complainant submitted her resignation on February 28, 2019, and stated in her email “I am retired.” The AJ found that Complainant’s claim that she retired based on fear of termination was baseless. Complainant acknowledged that the Agency had not even taken the first basic step toward removing her for poor performance based on its own policy, which would have been to place her on a performance improvement plan. Instead, Complainant’s supervisor met with her several times to help her understand her previous rating and improve. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. Finally, to the extent that Complainant was alleging that her retirement amounted to a constructive discharge, the AJ found that such a claim must fail as Complainant was not subjected to a hostile work environment based on discriminatory or retaliatory motivation. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argues that the AJ erred in granting summary judgment as there are genuine facts still in dispute and discrepancies that need to be adjudicated. Complainant contends that the AJ allowed deception, pretext, and/or trickery by the Agency. Complainant further argues that a reasonable fact-finder could find in her favor. Accordingly, Complainant requests that the Commission reverse the final order. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see 2022001971 4 also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, retaliation, or a hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a 2022001971 5 legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for 2022001971 6 filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 31, 2023 Date